Citation Nr: 0937809
Decision Date: 10/05/09 Archive Date: 10/14/09
DOCKET NO. 06-37 116 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Veteran represented by: Marine Corps League
WITNESSES AT HEARING ON APPEAL
Veteran, Veteran's Friend
ATTORNEY FOR THE BOARD
David Traskey, Associate Counsel
INTRODUCTION
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A.
§ 7107(a)(2) (West 2002). The Veteran had active service
from February 1944 to July 1946.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a decision of January 2006 by the
Department of Veterans Affairs (VA) Nashville, Tennessee,
Regional Office (RO).
The Veteran requested a hearing before a decision review
officer (DRO) in connection with this case. The hearing was
scheduled and held in November 2007. The Veteran testified
at that time and the hearing transcript is of record. The
Veteran also requested a Travel Board hearing. The hearing
was scheduled and subsequently held in November 2008. The
Veteran and his friend testified before the undersigned
Acting Veterans Law Judge (AVLJ) and the hearing transcript
is of record.
The Veteran's claim was previously remanded in December 2008
for additional evidentiary development. The required
development was completed and the Veteran's claim is before
the Board for final appellate consideration.
FINDINGS OF FACT
1. The Veteran was exposed to acoustic trauma during his
active military service.
2. The Veteran's bilateral hearing loss is related to his
active military service.
CONCLUSION OF LAW
The criteria for entitlement to service connection for
bilateral hearing loss are met. 38 U.S.C.A. § 1110 (West
2002); 38 C.F.R. §§ 3.303, 3.304 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran in this case contends that his bilateral hearing
loss is related to service. In particular, the Veteran
asserts that he sustained bilateral hearing loss during boot
camp as a result of time spent on the firing range without
hearing protection. Following completion of boot camp, the
Veteran stated that he was assigned as a crew member to a
transport plane, but that the plane was poorly insulated and
noisy. The Veteran also reported that he experienced hearing
loss continuously since his discharge from service.
Service connection may be granted for disease or injury
incurred in or aggravated by service. 38 U.S.C.A. § 1110
(West 2002). Establishing service connection requires (1)
medical evidence of a current disability; (2) medical, or in
certain circumstances, lay evidence of in-service occurrence
or aggravation of a disease or injury; and (3) medical
evidence of a nexus between the claimed in-service disease or
injury and the present disability. Hickson v. West, 12 Vet.
App. 247, 253 (1999); 38 C.F.R. § 3.303(a) (2008).
Service connection may also be granted for any disease
diagnosed after discharge, when all of the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. 3.303(d).
Presumptive periods are not intended to limit service
connection to diseases so diagnosed when the evidence
warrants direct service connection. The presumptive
provisions of the statute and Department of Veterans Affairs
regulations implementing them are intended as liberalizations
applicable when the evidence would not warrant service
connection without their aid. 38 C.F.R. § 3.303(d).
According to 38 C.F.R. § 3.309(a) (2008), service connection
for certain disabilities, including organic diseases of the
nervous system, may be granted on a presumptive basis if
manifested to a compensable degree within one year after
separation from service.
The absence of documented hearing loss while in service is
not fatal to a claim for service connection. Ledford v.
Derwinski, 3 Vet. App. 87, 89 (1992). When the Veteran does
not meet the regulatory requirements for a disability at
separation, he can still establish service connection by
submitting evidence that a current disability is causally
related to service. Hensley v. Brown, 5 Vet. App. 155, 159-
160 (1993).
Under 38 C.F.R. § 3.385 (2008), for the purposes of applying
the laws administered by VA, impaired hearing will be
considered to be a disability when the auditory threshold in
any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is
40 decibels or greater; or when the auditory thresholds for
at least three of the frequencies 500, 1000, 2000, 3000, or
4000 Hertz are 26 decibels or greater; or when speech
recognition scores using the Maryland CNC Test are less than
94 percent.
Service treatment records (STRs) associated with the claims
file are negative for a bilateral hearing loss disability as
contemplated by 38 C.F.R. § 3.385. There is also no evidence
of bilateral hearing loss within one year after discharge
from service.
The first pertinent post-service evidence of record is dated
February 2005. The Veteran was afforded a private
audiological examination at that time. The results of the
audiometric testing were revealed to show bilateral
sensorineural hearing loss. According to the examiner, the
Veteran indicated that he had a hearing impairment which
started in 1945 while in service. See February 2006
statement from L. Dorsey, BC-HIS.
The Veteran underwent another private audiological
examination in August 2006. The results of the audiometric
testing were revealed to show severe bilateral sensorineural
hearing loss with poor discrimination scores (i.e., 52
percent - right ear; 68 percent - left ear). According to
the examiner, the Veteran indicated that he had a hearing
loss which began in service and got progressively worse. See
August 2006 statement from C. St. Charles, M.D., F.A.C.S.
The Veteran's sister submitted a statement in support of the
current claim dated November 2006. She stated that the
Veteran had no hearing problems prior to service and had no
post-service occupational noise exposure. According to his
sister, however, the Veteran occasionally went hunting. The
Veteran's sister also indicated that the Veteran was found to
have "nerve damage" in his ears "in the late '40s," and
that his hearing deteriorated significantly over the
intervening years.
VA administered a Compensation and Pension (C&P) audiology
examination in July 2007. The Veteran expressed the opinion
that his hearing loss was related to noise exposure on the
artillery range during boot camp and the result of exposure
to jet aircraft noise thereafter. The audiological
examination yielded the following puretone thresholds, in
decibels:
HERTZ
500
1000
2000
3000
4000
RIGHT
50
60
85
90
95
LEFT
30
60
75
80
85
Speech recognition scores using the Maryland CNC word lists
were 34 percent in the right ear and 60 percent in the left
ear. The VA audiologist noted that the puretone audiometry
results in the right ear indicated moderate sloping to
profound sensorineural hearing loss from 500 - 4000 Hz with
poor speech discrimination scores. A mild sloping to severe
sensorineural hearing loss from 500 - 4000 Hz with poor
speech discrimination scores was found in the left ear.
The audiologist concluded that it "was less likely as not
(less than 50/50 probability)" that the Veteran's hearing
loss was the result of his in-service noise exposure. In
support of this contention, the examiner noted that the first
evidence of audiometric testing was approximately 60 years
after discharge from service. The examiner also pointed out
that the Veteran had a post-service history of recreational
noise exposure (e.g., hunting and woodworking) and that these
activities were done without the benefit of hearing
protection. Furthermore, the examiner noted that the Veteran
worked after discharge from service as a chemist, and that
exposure to certain chemicals can have potentially ototoxic
effects.
Also associated with the claims file is a statement from
W.T., a service buddy, dated November 2007. According to
W.T. he and the Veteran "flew in the Pacific" together.
W.T. also indicated that he subsequently developed a hearing
problem in his left ear and "had to give up flying for this
reason."
The Veteran testified before a DRO in November 2007 in
support of the current claim. In particular, the Veteran
indicated that he worked on a "black transportation
squadron" in service, hauling cargo, mail, and people in an
airplane. See hearing transcript, pp. 4-5. The Veteran also
reported in-service noise exposure during a three-week period
of training on the rifle range. Id. at pp. 6-7. The Veteran
denied using hearing protection, except for "medicinal
cotton." He also testified that the onset of his hearing
impairment was in the early 1950s and was confirmed by a
private ear, nose, and throat examiner. However, the Veteran
also stated that he no longer had copies of these records and
that they were destroyed in a house fire.
The Veteran also testified before the undersigned AVLJ in
November 2008. The Veteran indicated that his hearing
impairment began in service after spending three weeks on the
rifle range during boot camp. See hearing transcript, p. 4.
Thereafter, the Veteran was assigned to a marine transport
squadron. He first worked in the engineering office where he
was subjected to aircraft engine noise. Later, he delivered
mail and cargo aboard aircraft while stationed in Hawaii.
Id. The Veteran also testified that he had difficulty
hearing since discharge from service. In particular, the
Veteran had trouble hearing the television and hearing at
church or during lectures, but he denied any significant
post-service noise exposure.
The Veteran was afforded another VA C&P audiology examination
in May 2009. At the time of the examination, the Veteran
reported subjective complaints of bilateral hearing loss,
with particular difficulty understanding conversational
speech. The audiological examination yielded the following
puretone thresholds, in decibels:
HERTZ
500
1000
2000
3000
4000
RIGHT
90
75
90
95
100
LEFT
45
75
85
90
90
Speech recognition scores using the Maryland CNC word lists
were 48 percent in the right ear and 76 percent in the left
ear. The audiologist noted that the puretone audiometry
results showed bilateral sensorineural hearing loss. The
examiner also concluded that the Veteran's bilateral hearing
loss was "at least as likely as not" the result of his
active military duty. For reasons unknown to the Board, an
addendum to this opinion was requested and subsequently
associated with the claims file in June 2009. In the
addendum, the same audiologist indicated that he could not
resolve the Veteran's claim without resorting to mere
speculation.
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the Veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. 38 U.S.C.A. § 5107; Gilbert
v. Derwinski, 1 Vet. App. 49 (1990). When there is an
approximate balance of positive and negative evidence
regarding any issue material to the determination, the
benefit of the doubt is afforded the Veteran.
Here, the competent evidence of record enables a finding that
the Veteran's currently diagnosed bilateral hearing loss was
incurred in active service because the medical evidence is in
relative equipoise. The Board acknowledges that there are
two competing medical opinions in this instance offering
different conclusions as to whether the Veteran's currently
diagnosed bilateral hearing loss is related to service.
Specifically, the July 2007 VA C&P audiologist found it
"less likely as not" that the Veteran's hearing loss
disability was the result of his in-service noise exposure,
while the May 2009 VA C&P audiologist found that the
Veteran's bilateral hearing loss disability was "at least as
likely as not" the result of his active military duty.
Resolving all doubt in the Veteran's favor, the Board finds
that service connection for bilateral hearing loss is
granted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.
In reaching these conclusions, the Board has applied the
benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b);
38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49
(1991); Alemany v. Brown, 9 Vet. App. 518 (1996).
Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist veterans in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). In this case,
the Board is granting in full the benefit sought on appeal.
Accordingly, assuming, without deciding, that any error was
committed with respect to either the duty to notify or the
duty to assist, such error was harmless and will not be
further discussed.
ORDER
Service connection for bilateral hearing loss is granted.
____________________________________________
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs